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Review - the legalization of drugs

Note: This review article was published in Theoria 73 (2007) but (due to
editing error) without endnotes. Page numbers here as in published text.
Kalle Grill, Royal Institute of Technology, Stockholm
Department of Philosophy and the History of Technology
You come home Friday night all stressed out after a hard day’s work. Nothing is
planned for Saturday morning and you don’t feel like socializing. You decide to roll
yourself a joint of marijuana and watch a movie, or perhaps you decide to fix yourself
a shot of heroin and skip the movie. Should this be allowed? Why? Why not? If it
should not be allowed, what is the appropriate response from society? These are
some of the issues under discussion in The Legalization of Drugs, co-authored by
Douglas Husak and Peter de Marneffe. For this forth book in R.G. Frey’s For and
Against series from Cambridge University Press, Husak has taken on the task of
defending legalization and de Marneffe the task of criticising it.i The book contains
many sound observations about the drug debate and about the actual and possible
effects of different drug policies. The main weakness of the book is that both
authors employ narrow normative assumptions to support their arguments,
assumptions that are not well argued for.
In Husak’s clear and helpful introductionary chapter a number of
conceptual distinctions are made, including the important one between
decriminalization – making drug use not a criminal offence, and legalization – making the
production and sale of drugs not a criminal offence (p. 3). De Marneffe employs these
same distinctions, but, as opposed to Husak’s “criminalization”, prefers the common
term “prohibition” for the state of affairs in which drugs are not legalized (p. 110).
Though de Marneffe states that prohibition is consistent with decriminalization, it is
clear that he believes that some kind of punishment for possession is an essential
element of efficient prohibition. As for the object of prohibition – drugs – Husak
notes that since invoking the current legality of a substance will not do for normative
discussion of that very legal status, it is hard to find a definition of drugs that
caffeine, salt, herbs, and even water, without resorting to plainly ad hoc specifications.
Should we nonetheless come upon a reasonable definition of drugs, we are
immediately faced with the problem of distinguishing between recreational and
medical use, as it is only the former that anyone wants to prohibit (though the
medical use of typically recreational drugs is sometimes prohibited – on dubious
grounds). As Husak points out, this distinction is especially hard to maintain in the
current state of wide-spread medicalization of general health problems, including
poor sexual performance, light depression and excessive sleepiness (pp. 19-22). In
light of these difficulties, it makes perfect sense that both authors for the most part
restrict their arguments to specific drugs.
Perhaps somewhat surprisingly, the authors agree that hallucinogenic drugs
such as marijuana, LSD and even ecstasy should be legalized (and decriminalized)
(pp. 184-85). De Marneffe’s only concern is with drugs that are evidently and
seriously harmful, such as heroin and alcohol. He finds little merit in the popular
“gateway hypothesis” that light drugs such as marijuana function as a gateway into
use of more potent drugs such as heroin (pp. 178-80). The main reason for this
scepticism is that the widespread use of marijuana in the US has not led to a
corresponding use of heroin (45% of US high school students have used marijuana,
1,5% heroin)ii. The fact that most heroin users have at some point used marijuana
does of course not indicate that the use of marijuana somehow causes heroin use,
any more than the fact that most US go players have at some point played chess
indicates that playing chess causes go playing. De Marneffe points out that currently
marijuana is illegal and so switching to more potent drugs does not involve a step
from licit to illicit drugs. Partial legalization and decriminalization would likely lead to
greater availability but would also move the boundary between legal and illegal use,
thus strengthening the possible deterrent effect of prohibition of potentially harmful
Less surprisingly, the authors also agree that the current US drug policy is
excessive in sentencing large numbers of people to long prison terms. They both
note that large scale imprisonment entails a great cost in terms of human suffering.
Husak also points to the cost of inducing young people to adopt a life of crime, the
physical risks of prison life, the long term effects of lessened employability, and the
negative impact on families (p. 29). Husak and De Marneffe provide insightful
discussion of a wide range of issues, including the positive effects of drug use in
of pleasure and mood control, the possible negative effects on health, the “leakage”
of drugs to minors when legal for adults, the possible inherent immorality of drug
use, the potential reduction of crime resulting from normal business practices in the
distribution of drugs were they legal, and the possibility of making risky drugs such as
amphetamine safer if legal. It is a strength of the book that these and other issues are
discussed by both authors, making use of the for and against format to present two
different views on the same subject matter.
The common ground reached by the partial overlap in focus and by the
shared rejection of many traditional myths, confusions and misconceptions of drug
use could have allowed for an even more interesting debate. Unfortunately, the
mostly sober analysis of the empirical facts and of the bad arguments does not quite
carry over to the more difficult task of evaluating the remaining good arguments for
and against prohibition. Husak with rigor exposes the empirical weaknesses of the
case for prohibition, including not only such obvious aspects as the relative
harmlessness of illicit drugs in comparison with legal activities such as overeating and
recreational sports, but also less obvious aspects such as the faulty assumptions that
no drug use equals a healthy lifestyle and that more use of illicit drugs would only
add to the total drug use with no substitution effects (pp. 103-4). Husak also
thoroughly explains that assuming the neutrality of the status quo or invoking public
opinion are bad arguments against decriminalization (pp. 25-28, 32-34). These efforts
are perhaps warranted by the deplorable state of the current political drug debate.
However, Husak is much less thorough when it comes to defending his own
Husak insists that prohibition should be evaluated according to how well it
coheres with the principle that “[t]he state is never justified in punishing someone
unless he or she deserves it.” (p. 31) Desert is left unspecified, but presumably
refusing to adjust to a scheme that reduces overall harm does not entail desert for
punishment. The principle of just punishment is supposed to be inconsistent with
using the criminal law to reduce harm: “The (assumed) fact that less harm would be
caused by punishing someone does not thereby justify the punishment or show that it
is deserved.” (p. 36, emphasis in original) This position is a clear contradiction of
consequentialist justifications for criminal law, including deterrence theories of
punishment. Husak provides no argument for this position. Instead, he declares that
it is “so obvious that I find it hard to
believe that anyone disagrees with it.” (p. 31) It is certainly worthwhile to point out
that in contrast to other crimes such as theft or assault, drug use or possession are
victim-less crimes, and so an important rationale for punishment is lacking (p. 30).
This, however, does not establish that there are no other rationales for punishment.
De Marneffe for one believes that the harms to children from using heroin and from
heroin abuse by their parents justifies the government to take necessary measures
against heroin use, including punishment. In support of his position, de Marneffe
reasons that “[s]ometimes the government is justified in imposing criminal penalties
for conduct that does not directly wrong or harm anyone because this policy is
nonetheless necessary to protect people effectively from harm.” (p. 130) This
consideration may for example justify prohibiting the “private possession of high-
powered military weapons.” (p. 130) Husak need not agree, but does himself a
disfavour by refraining from even discussing the argument from deterrence, choosing
instead to make the case for decriminalization depend on a controversial and vague
The rhetorical attack on harm reduction is all the more perplexing in light
of the fact that Husak explicitly commits himself to this very principle when turning
in his concluding chapter from decriminalization to discussing legalization, proposing
that “a harm-reduction framework should be applied to assess questions about
commercialization” (p. 99). Presumably, harm reduction is acceptable in this context
because the regulation of production and sale raises no questions of justice. If so, this
must be either because punishment for sale and production does not have to be
deserved, or because sellers and producers do deserve punishment. None of these
assumptions are argued for and both seem to contradict the spirit of the argument
for decriminalization. Admittedly, producing and selling harmful drugs can harm
others, but the risk of harm is voluntarily assumed by the buyer, just as it is in cases
of selling unhealthy food or instructing in dangerous sports. Some kind of argument
is needed to establish that facilitating the risky behaviour of others deserves to be
punished, or is even immoral. Lacking such an argument, it is hard to see how
Husak’s reasoning on the two matters of decriminalization and legalization is
De Marneffe, like Husak, delivers thoughtful comments on many issues, but
gets entangled in complications when he reaches for a higher order principle to
underpin his more common-sense consequentialist claims.
Focusing on the case of heroin, de Marneffe argues that any policy that accepts or
leads to heroin use will also lead to substantial heroin abuse, simply because of the
extreme pleasure involved in using the drug and the resulting tendency of users to
become indifferent to their own present and future opportunities as regards other
things than continued use. Heroin abuse by adults is in itself a serious problem on
any standard account of the good life. However, de Marneffe focuses his argument
on the effects of heroin use and abuse on children. Children may suffer both from
the negligence of their heroin-using parents, and from their own use (as adolescents)
leading to depressed motivation for education and social development (pp. 112-13).
De Marneffe recognizes that legalization need not extend to minors, but argues that
greater general availability and use will lead to greater opportunities for minors to
acquire the drug, and greater temptations to use it. In a worst case scenario depicted
by de Marneffe, a child neglected by his heroin-using parents escapes pressing
emotional and academic challenges in adolescence by developing his own heroin
habits (p. 115). As for the negative effects of prohibition, de Marneffe argues that
many of them can be mitigated by greater respect for civil liberties by enforcement
agencies, more effective information campaigns about the dangers of overdose,
allowing medical use, and implementing a “gradual and proportionate system of
Having stated the consequentialist case for heroin prohibition, de Marneffe
shuns away from outright consequentialism, dropping a few critical remarks on one
specific version – hedonistic utilitarianism (pp. 123-24). Rather than simply
acknowledging that the exact import of the consequentialist arguments depends on
one’s general moral outlook, de Marneffe attempts to defend a full-fledged
contractualist moral theory, according to which “the risk of lost opportunities that
some individuals would bear as the result of heroin legalization justifies the risks of
criminal liability and other burdens that heroin prohibition imposes on other
individuals.” (p. 124) It is not quite clear where this justification comes from,
especially since de Marneffe frequently invokes the idea of people having reasons to
prefer one situation or other as a primitive, unexplained normative notion. While
“individuals” is put in the plural in the just quoted passage and elsewhere, de
Marneffe claims that his account is non-aggregative. The central claim is that “the
worst risk to some individual under heroin legalization is worse than the worst risk to
some individual under prohibition” (p. 125, emphasis added). Presumably then, we
are to be concerned with single individuals and the expected value for them resulting
from different policies, as measured in terms of opportunities. The thesis might be
that a government policy is justified if and only if it improves the prospects of the
worst of individual without making any other individual even worse off.
Alternatively, the thesis might be that a policy is justified if and only if the
improvement of the prospects of some one individual resulting from the policy is
greater than the improvement of the prospects of any other individual resulting from
any alternative policy. Either way, the theory is extreme in its disregard for aggregate
outcome. Should prohibition lead to great suffering and loss of opportunity in the
aggregate (from punishment and impure drugs for example), this has no bearing on
the justifiability of prohibition. De Marneffe calls his theory individualistic, but this is
an individualism that ignores the interests of all individuals except one. It is not clear
why we should accept this theory, or why it is less problematic than
consequentialism. It is also unclear how this theory is to be applied, since someone is
certain to suffer a great loss and someone to gain a lot, whichever policy is adopted.
How do we compare the risks of a life destroyed by heroin to the risks of a life
destroyed by prison? Do we focus exclusively on probability? If so, why does a slight
difference in probability of loss or gain for one person outweigh the losses or gains
of a great number of people? In sum, de Marneffe’s contractualist theory does little
to add to the force of his argument for prohibition.
There are certainly worthwhile topics that are not covered in the book and
that could have been given more room at the expense of explaining and applying
principles. For example, it would have been interesting if the authors had extended
their thoughtful discussion of the pros and cons of prohibition to the more
constructive investigation of how drug policy could be designed to best protect de
Marneffe’s neglected heroin-using adolescent, without sending either him or Husak’s
well-adjusted drug users to prison. Could, for example, the sale of now illicit drugs be
restricted to government controlled stores open 8-10 Monday mornings and serving
only sober customers? Could perhaps the sale of tobacco be restricted to the same
stores? What would be the benefits and drawbacks of such a design? De Marneffe
assumes without argument that if drugs were to be legalized, they would be sold in
stores and marketed just like alcohol and tobacco are now (p. 111, p. 115). Husak is
more open-minded in this regard, but limits himself to suggesting that different kinds
legalizations should be tried out in order to collect more empirical data (p. 105).
Husak does not in this book consider whether drug prohibition is
paternalistic and potentially problematic on that account, though he has done so
elsewhere.iii De Marneffe, however, provides a clarifying account of to what extent
prohibition is in harmony with classical liberal principles. He reasonably claims that
prohibition is neither moralistic nor perfectionist, since the reason for prohibition is to
protect adequate opportunities, a neutral liberal good (pp. 132-39). Prohibition is,
however, paternalistic, in that it limits the liberty of individuals for their own good (p.
139). De Marneffe refreshingly does not assume that paternalistic policies are
automatically illegitimate or wrong, even prima facie. Instead, he proposes that
limiting a person’s liberty is justified if the person is better off that way, or in his
terminology if “the good reasons there are for this person to prefer her situation
when her liberty is limited in this way outweighs the good reasons there are for her to
prefer her situation when her liberty is not limited in this way” (p. 141).iv
De Marneffe takes the strongest argument against paternalism to be the fact
that people generally can control whether or not they themselves act to promote or
demote their well-being (as opposed to whether or not others do so), and so most
often do not have strong reasons to prefer paternalistic interference. Adding to this,
there is the positive value of autonomy or self-direction. De Marneffe seems to
concede that, in light of these arguments, it may be that paternalism directed towards
mature adults is always undesirable, all things considered (p. 142-45). This does not
affect his argument for heroin prohibition, since the people who benefit the most
from prohibition are not mature adults, but rather adolescents, whose ability to
promote their own good is supposedly weaker and whose self-direction is supposedly
De Marneffe notes that the anti-paternalist argument from control is
weakened by the fact that potent drugs such as heroin are often addictive. Even so,
he does not think that the benefits for mature adults justifies prohibition. The
different rationales provided by benefits to adults and benefits to children are kept
strictly separate from each other. Prohibition is said to be “unjustifiable by its
benefits to fully mature adults even though it is justifiable by its benefits to young
people.” (p. 153) In considering possible rationales on a one by one basis, de
Marneffe adopts the standard idea that paternalistic policy should be evaluated
main or true reason for the policy.v While common, this is a strange way to evaluate
policy. It would seem that the benefits of prohibition for mature adults could provide
a contributory reason for prohibition, even if it does not in itself provide a sufficient
reason.vi De Marneffe does not help himself to this argument for prohibition, perhaps
because of his commitment to the individualistic theory for policy evaluation.
The Legalization of Drugs is a good example of how philosophical method,
rigor and open-mindedness can be excellent tools for clarifying important policy
issues. It is also an example of how philosophical fascination with abstract moral
principles and ambition to provide all-encompassing frameworks can disrupt such
projects and confuse the subject matter. One may wonder whether applied ethics is
at its best when it avoids philosophy proper. This may be too radical. Concern with
undeserved punishment and concern with the effects of legalization and
decriminalization for the most unfortunate are both perfectly valid in the context of
drug policy, and should be expressed and analyzed. However, such work is more
fruitful when performed in an open-ended way, without commitment to narrow
i Husak’s contribution is essentially a refinement of his recent argument for decriminalization in
Legalize This! the case for decriminalizing drugs, London: Verso 2002.
ii According to the US National Institute of Drug Abuse.
iii ”Recreational Drugs and Paternalism”, Law and Philosophy 8 (1989), pp. 353-381.
iv De Marneffe has refined his position on paternalism in ”Avoiding Paternalism”, Philosophy and Public
v See for example Joel Feinberg, Harm to Self, Oxford: Oxford University Press 1986, pp. 16-23.
vi This is in fact pointed out by Husak in ”Recreational Drugs and Paternalism”, p. 359.